May 26, 2007

Are microchip implants for offenders inevitable?

Legislation that would authorize microchip implants in people convicted of violent crimes was sent back to a committee yesterday. This after state House members questioned whether the proposal would violate constitutional civil liberties.

The measure, approved by the Senate, authorizes microchip implants for persons convicted of one or more of 19 violent offenses who have to serve at least 85 percent of their sentence. The tiny electronic implants are commonly used to keep track of pets and livestock, but several House members questioned whether their forced use in people would be unconstitutionally invasive.

As highlighted in this article, a West Palm Beach Alzheimer's care center is talking about placing microchips into its patients; and this article notes that a "deputy with the Palm Beach County Sheriff's Office has been implanted with a microchip that will give emergency doctors access to his medical information."

I would wager it is only a matter of time before these kinds of technocorrections really take off.

UPDATE: A very helpful reader pointed me to this on-point recent article in one of Ohio State's own journals about human tracking technology. The article is by William Herbert and is entitled "No Direction Home: Will The Law Keep Pace With Human Tracking Technology to Protect Individual Privacy and Stop Geoslavery?" Here is the abstract:

Increasingly, public and private employers are utilizing human tracking devices to monitor employee movement and conduct. Due to the propensity of American labor law to give greater weight to employer property interests over most employee privacy expectations, there are currently few limitations on the use of human tracking in employment. The scope and nature of current legal principles regarding individual privacy are not sufficient to respond to the rapid development and use of human tracking technology. The academic use of the phrase geoslavery to describe the abusive use of such technology underscores its power. This article examines the use of such technology under current federal and state law and suggests potential means for developing greater legal protections against the abusive use of the technology and the intrusion into personal privacy.

Exploring article selection for student-edited law reviews

With a hit tip to Orin Kerr for the pointer, anyone writing about sentencing topics may want to check out this notable new article, entitled "The Law Review Article Selection Process: Results from a National Study," exploring how student editors select article for law review publication. Here is the abstract:

The student-edited law review has been a much criticized institution. Many commentators have expressed their belief that students are unqualified to determine which articles should be published in which journals, but these discussions have been largely based on anecdotal evidence of how journals make publication decisions. It was against that backdrop that we undertook a national survey of law reviews in an attempt to determine how student editors responsible for making publication decisions went about their task. This article compiles the results of that survey, which received 191 responses from 163 different journals. We analyzed 56 factors that influence the selection process and then grouped similar items together to form 17 constructs using factor analysis. Finally, we disaggregated the results to determine whether the results were significantly different based on the prestige of the journals involved. While many of our results confirm what has been widely assumed to be true, there are also some surprising findings. We found, for example, that Articles Editors seek to publish articles from well-known and widely-respected authors. It appears, however, that editors do not assume that prestigious authors produce the best scholarship, but instead they pursue the work of well-known authors because it can increase their journals' prestige within the legal academic community. The survey reveals that editors are not nearly as likely to seek out articles dealing with hot or trendy topics as some commentators have assumed, and that author diversity plays almost no role in the article selection process. We hope that our study will provide some structure to the ongoing debate about how best to use students in the law review publication process and will allow a more informed consideration of whether students are sufficiently well-trained to evaluate articles and whether they are using the proper criteria.

May 25, 2007

Government pushing for around 3 years for Libby

As previewed here, the Libby sentencing story is now to start heating up with some tough government advocacy and guideline recommendations. How Appealing has the basic media coverage here and TalkLeft and Firedoglake have good early analysis. I'll post a lot more when I take it all in this weekend. In the meantime, readers go at it.

UPDATE: I have now had a chance to give the Government's intricate guideline calculation memo and its broader sentencing memo. Both are amazing documents that suggest that Judge Walton will have a lot to sort through when sentencing Libby on June 5. I surmise that Libby's lawyers are going to be asking for probation, that the government wants at least a 30-month prison sentence, and that the presentence report has suggested something in between these pretty wide extremes.

As I was reading both of the government's Libby sentencing filings, I could not help thinking about Victor Rita, whose 33-month sentence is currently pending before the US Supreme Court. (I have previously stressed Libby-Rita parallels in posts here and here.) For so many reasons, the context and import of Lewis Libby's perjury seems far, far, far worse than Victor Rita's perjury. Though Rita's 33-month sentence may be reversed by the Supreme Court, it will be quite telling if Libby gets a sentencing term that is lower.

More great stuff from the FSG conference

As I had expected, the morning plenary panels on the last day of National Seminar on the Federal Sentencing Guidelines in Salt Lake City were stellar. Here are two particular highlights:

1. As emphasized by all the district judges, the reality of post-Booker sentencing varies dramatically for circuit to circuit (although such circuit variations were common before Booker, too). Providing a dramatic capper on this reality, judge Gerald Lee of theEastern District of Virginia said simply from the audience "The guidelines are mandatory in the Fourth Circuit."

2. Deputy SG Michael Dreeben predicts that "Claiborne and Rita will be close votes and will be decided in the second week of June." I think both predictions are very sound (but certainly not certain).

So much for a within-guideline sentence being unreasonable in the Eighth Circuit

The Eighth Circuit on Friday issued a number of published sentencing decisions ruling against defendants. This common reality is itself not newsworthy, but it is notable that one opinion, US v. Goodwin, No. 06-2502 (8th Cir. May 25, 2007) (available here), now affirms the within-guideline sentence of the only defendant that had ever previously had her within-guideline sentence reversed as substantively unreasonable.

Upon remand in Goodwin, the district judge explained more fully the reasons for giving defendant Goodwin a within-guideline sentence, and now the Eighth Circuit affirms that sentence. The term Pyrrhic victory comes to mind.

Sixth Circuit reverses guidelines sentence for inadequate explanation

I am about to head off to a panel National Seminar on the Federal Sentencing Guidelines in Salt Lake City that has six great district judges providing a sentencing "view from the bench." They might be interested to learn of a decision today from the Sixth Circuit, US v. Johnson, No. 05-4277 (6th Cir. May 25, 2007) (available here), which reverses a within-guidelines sentence for inadequate explanation. Here's the key concluding paragraph:

We have examined carefully the transcript of the sentencing proceedings and the other documents submitted and are unable to find any discussion of the reasons for which the district court chose the sentence it settled upon. The district court determined that the appropriate advisory sentencing guideline range was 262 to 327 months, announced a “tentative sentence” at the bottom of the range, gave the parties an opportunity to object and comment, and when no objections were forthcoming, advised the defendant of his appellate rights. We have little doubt that the experienced and learned trial judge was aware that the sentencing guidelines were advisory and that the factors enumerated in section 3553(a) were to guide her discretion; but we are unable to point to anything in the record to confirm our surmise. Therefore, we must vacate the sentence and remand for resentencing.

Libby sentencing buzz starting

Josh Gerstein has this article in the New York Sun previewing the upcoming sentencing of Lewis Libby. Here are excerpts:

Prosecutors and defense lawyers for a former White House aide, I. Lewis Libby Jr., face a deadline Friday to give their final recommendations on the sentence he should receive for his conviction on charges of perjury, obstruction of justice, and lying to the FBI. However, the real cliffhanger at the sentencing hearing, set for June 5, is not what punishment Judge Reggie Walton imposes, but whether he allows Libby to remain free while pursuing his appeal....

Bail for Libby would amount to a reprieve for President Bush, who would then have until next year to make the politically sensitive decision about a pardon for the former chief of staff to Vice President Cheney. However, if the judge orders Libby jailed forthwith, Mr. Bush will face intense and immediate pressure from many of his supporters to commute the sentence or grant a pardon.

A former U.S. attorney for the capital, Roscoe Howard Jr., said he doubts Judge Walton will allow Libby to delay serving his sentence until his appeals are resolved. "I don't see that here," the ex-prosecutor said.

May 24, 2007

Another messy execution in Ohio

As detailed in this AP report, Ohio once again had trouble with a lethal injection execution today. Here are basic details and reactions:

A man executed Thursday for killing a cellmate chatted and laughed with prison staff as they struggled to find veins in his arm to deliver the deadly chemicals, taking so long that at one point he was given a bathroom break.

Christopher Newton, who had insisted on the death penalty as punishment for choking and beating the cellmate after arguing over a chess game, died at 11:53 a.m., nearly two hours after the scheduled start of his execution. The execution team stuck him at least 10 times with needles to get in place the shunts where chemicals are injected....

Prison officials said the difficulty prison staff had finding Newton's veins resulted from the girth of the 265-pound, 6-foot inmate. Newton told a public defender it was hard for blood to be taken from his veins because of his weight. Fifty-three minutes into the process, prisons spokeswoman Andrea Dean flashed a note to reporters: "We have told the team to take their time. His size is creating a problem."

Gov. Ted Strickland said every precaution was taken to make sure Newton was treated respectfully and was not in pain. "The procedure worked as it was intended to work," Strickland said. "If someone is against the death penalty then I can understand why they would want me to have a moratorium on the death penalty, but I think what happened today is not any supporting justification for that."

A few quick notes from the annual FSG conference

I've had a long and fun day at the National Seminar on the Federal Sentencing Guidelines in Salt Lake City (details in this event brochure). I moderated a panel on departures and variances, and all of the speakers had lots of great (competing) insights about post-Booker realities (especially in light of recent Commission amendments). The morning plenary sessions were not too eventful because they mostly consisted of US Sentencing Commissioners talking about past and planned USSC activities. However, here are a few notable items from today's activities:

1. No one knows quite what to expect from the Supreme Court in Claiborne and Rita, and most folks are even afraid to make predictions (though USSC Vice-Chair Ruben Castillo promised that the guidelines are "here to stay").

2. USSC Chair Ricardo Hinojosa seemed disappointed that I did not ask a question during the first plenary session.

3. The USSC is clearly working very hard to keep Congress informed and at ease about various sentencing developments, and no serious Booker fix is in the works.

4. The House has plans for lots of hearings in the coming months on issues like mandatory minimums, "what works" to reduce crime, and on possibly expanding good time credits.

Effective HLR casenote on post-Booker crack sentencing

Another new Harvard Law Review casenote — which is available here and is entitled "Eighth Circuit Holds That District Court Cannot Reduce Sentence Based on Categorical Disagreement with 100:I Powder/Crack Cocaine Quantity Ratio: United States v. Spears, 469 F.3d 1166 (8th Cir. 2006) (en banc)" — does a great job taking apart the analysis most circuit courts have used to deny district courts discretion to lower crack sentences. The note merits a full read, but here is the heart of the pitch:

Recently, in United States v. Spears, the Eighth Circuit ruled that it was impermissible for a district judge to grant a reduced sentence to a crack offender based on categorical disagreement with the ratio. This decision relied on questionable conclusions about Congress's intent regarding both the 100:1 ratio and the place of judicial policy choices in a post-Booker world, and its result cabins judges into a cramped and counterproductive role in the sentencing of crack offenders.

Notable HLR casenote urging judicial civil disobedience

A new Harvard Law Review casenote — which is available here and is simply entitled "Ninth Circuit Affirms Mandatory Sentence: United States v. Hungerford, 465 F.3d 1113 (9th Cir. 2006) — urges judges to exercise civil disobedience by failing to uphold unfair sentencing terms. The note merits a full read, but here is the heart of the pitch:

Federal judges should realize that they all have the power to craft a more just, humane, and cost-effective approach to criminal punishment. In fact, federal judges are uniquely well-suited to spark a movement against draconian sentencing by telling a credible, knowledgeable, and powerful story. To ignite and participate in this transformation, judges must step out from their traditionally prescribed roles.

Civil disobedience by federal judges is both justified and required when two conditions are met: first, when an essential contradiction exists between stated ideals and ostensible justifications on the one hand and how people are actually living and actually being treated on the other; and second, when such a contradiction is not likely to be exposed and remedied as effectively by social movements or other means absent judicial intervention. The ways in which America treats its criminal defendants and its prisoners satisfy both of these conditions, and the Ninth Circuit should have refused to apply the statute. It should have reversed Marion Hungerford's sentence.

A highly caffinated sentence for dirty coke dealing

As detailed in stories from the AP and Bloomberg, a federal district judge today decided to throw the book at the former Coca-Cola secretary convicted of conspiring to steal the company's trade secrets (background here). Here are the highlights from the AP:

Joya Williams, 42, had faced up to 10 years in prison on the single conspiracy charge in a failed scheme to sell the materials to rival Pepsi for at least $1.5 million. She was convicted Feb. 2 following a jury trial in U.S. District Court in Atlanta, where Coca-Cola Co. is based.

"This is the kind of offence that cannot be tolerated in our society," U.S. District Judge Owen Forrester said in imposing sentence. A co-defendant, Ibrahim Dimson, was sentenced to five years in prison.

Forrester's sentence for Williams was more severe than the 63-to 78-month sentence recommended by federal prosecutors and federal sentencing guidelines. He said the seriousness of the crime necessitated a departure from the guidelines, which federal judges are not bound by. "I can't think of another case in 25 years that there's been so much obstruction of justice," the judge said of Williams' conduct. Forrester largely ignored a tearful apology by Williams, which was the first time she acknowledged what she did.

Sixth Circuit rejects challenges to unconvicted conduct enhancement

In a lengthy opinion covering lots of issues, the Sixth Circuit today in US v. Brika, No. 05-4537 (6th Cir. May 23, 2007) (available here) rejects various constitutional and Booker challenges to a sentence significantly enhanced by the "the district court's consideration of conduct on which a jury could not agree." Here are some key snippets from the opinion:

Brika first alleges that the district court's consideration at sentencing of conduct on which a jury could not agree violated the Sixth Amendment. We believe that this argument is foreclosed by Watts v. United States, 519 U.S. 148, 157 (1997).... If district courts at sentencing may employ conduct on which a jury rendered a judgment of acquittal using only a preponderance-of-the-evidence standard, then surely they may employ conduct on which a jury could not agree using the same standard....

We see no logical contradiction between Watts and Booker. It is clear after Booker that district courts may still find facts at sentencing by a preponderance of the evidence.... Booker permits district courts to find facts at sentencing. Watts discusses only the standard of proof that applies when that fact-finding takes place. There is no contradiction between them. Accordingly, Watts controls here. Until the Supreme Court holds differently, a jury's inability to reach a verdict on a particular count under a reasonable-doubt standard does not require district courts to employ anything other than a preponderance standard at sentencing.

The Brika opinion makes a number of other important points about post-Booker sentencing realities that may or may not get addressed by the Supreme Court in Claiborne or Rita. Brika thus highlights another array of issues still festering in the lower courts after Blakely and Booker that the Justices, if they are genuinely interested in helping lower courts consistently apply Booker, perhaps should reach out to address.

Will SCOTUS grant cert on Blakely consecutive sentencing issue?

The latest "Conference Call" column in Legal Times is entitled "Supreme Court Asked to Clear Up Sentencing Muddle." The column highlights a case raising an important Blakely issues that the Justices are scheduled to consider this week. Here are the highlights:

By setting constitutional limits on a judge's discretion to sentence, [Apprendi and Blakely] called into serious question the sentencing schemes of the federal government and of dozens of states. In its private conference Thursday, the Supreme Court will consider whether to hear a case -- Washington v. VanDelft, No. 06-1081 -- that presents yet another wrinkle in the ever-evolving field of sentencing jurisprudence.

The question in VanDelft is whether the decision to impose consecutive rather than concurrent sentences is one that a judge can make, or whether, instead, it is a question that Apprendi and Blakely repose in the jury.

The issue is a significant one because the imposition of consecutive rather than concurrent sentences can have a substantial effect on a defendant's overall time of incarceration....

The defendant in VanDelft, William VanDelft, received multiple convictions in state court for various attempts to abduct young boys for sex. Two of those convictions were for attempted first-degree kidnapping; a third was for attempted second-degree kidnapping. Washington state sentencing law stated that the sentences for first-degree kidnapping "shall be served consecutively to each other." By contrast, sentences for second-degree kidnapping "shall be served concurrently." Importantly, though, the law goes on to state that consecutive sentences can be imposed in exceptional circumstances....

The [Washington Supreme Court] noted that Washington sentencing law contained a "statutory presumption of concurrent sentencing" for VanDelft's second-degree kidnapping conviction, and that this "presumption" served as the relevant statutory maximum under Apprendi and Blakely. The trial judge unconstitutionally exceeded this maximum, the court held, when he nevertheless imposed a consecutive sentence on VanDelft based on a separate finding that a concurrent sentence would be "too lenient."

A different kind of coke sentencing in Atlanta

As detailed in this AP article, a defendant in Atlanta faces sentencing today for a distinct version of the crime of dealing coke:

A former Coca-Cola secretary's claim of innocence during her trial could weigh against her when she is sentenced Wednesday for conspiring to steal trade secrets from the world's largest beverage maker. Joya Williams faces up to 10 years in prison for the foiled scheme to steal secrets from Atlanta-based Coca-Cola and sell them to Purchase, N.Y.-based PepsiCo Inc. for at least $1.5 million. She was convicted Feb. 2.

Williams, 42, asserted her innocence and testified at the trial that she did nothing wrong in the Coke case. Both are factors that federal judges are allowed to consider when imposing a sentence. "Penalizing someone for exercising their right to testify on their own behalf is in every sense wrong, but it has been challenged in court and it has been upheld," said Janice Singer, Williams' attorney. Williams doesn't have a prior criminal record, and that could benefit her at sentencing.

A prosecution spokesman, Patrick Crosby, declined to say Tuesday what sentence the government will recommend for Williams. Details of a pre-sentence report prepared by probation officials were under wraps....

Singer said Tuesday that she will ask U.S. District Judge J. Owen Forrester for leniency for Williams, though the attorney said she hadn't decided whether to seek a specific sentence. Forrester is not bound by federal sentencing guidelines, though any departure from the guidelines has to be reasonable.

I wonder if readers might be inclined to venture a guess as to the likely sentence (or to argue for a particular sentence) for the coke bandit. Without having any idea of the applicable guideline range, I'm guessing that around a year in prison is possible.

May 22, 2007

Louisiana Supreme Court upholds death sentence for child rape

In a case that seems likely to get US Supreme Court attention, the Louisiana Supreme Court today upheld the death sentence of child rapist Patrick Kennedy in Louisiana v. Kennedy, No. 05-KA-1981 (La. May 22, 2007) (available here). Here is a snippet of the heart of the analysis of the majority opinion in Kennedy:

Looming over this case is the potential for the defendant to be the first person executed for committing an aggravated rape in which the victim survived since La. R.S. 14:42 was amended in 1995 to allow capital punishment for the rape of a person under the age of twelve. The defendant contends that Louisiana stands in a minority of jurisdictions in which legislatures have authorized capital punishment for the rape of a child not resulting in homicide and predicts that La. R.S. 14:42 is unlikely to survive the scrutiny of the United States Supreme Court, whose decisions the defendant interprets as making it clear that the loss of life is the essential component which renders capital punishment a proportionate penalty under the Eighth Amendment....

While we cannot purport to exercise the Supreme Court's independent judgment on any matter, it can be said for child rapists as a class of offenders that, unlike the young or mentally retarded, they share no common characteristic tending to mitigate the moral culpability of their crimes. Contrary to the mentally retarded and juvenile offenders, execution of child rapists will serve the goals of deterrence and retribution just as well as execution of first-degree murderers would. Our state legislature, and this Court, have determined this category of aggravated rapist to be among those deserving of the death penalty, and, short of a first-degree murderer, we can think of no other non-homicide crime more deserving.... We affirm [our prior] reasoning [in Wilson] today and hold that the death penalty for the rape of a child under twelve is not disproportionate.

Who's writing how many opinions in Claiborne and Rita?

In the this post and its comments, Tom Goldstein speculates that Justice Stevens is writing the opinion for the Court in Claiborne and Rita. Others suggest that Justice Breyer might have the assignment. I am pretty convinced that they will both author something in these cases. (After all, these two Justices combined for four opinions in Booker).

In addition to speculating about who is writing for the Court, it is also fun to ponder how many total opinions there will be in Claiborne and Rita. Technically, these are two distinct cases that surely could produce different voting outcomes/patterns and thus might require distinct majority and dissenting opinions. In addition, I would guess that, in addition to Justices Stevens and Breyer, at least three or maybe four or perhaps even five other Justices — Justices Scalia, Ginsburg, Alito and maybe also Justices Kennedy and Thomas — may want to speak their peace in these cases.

For all these reasons, I'll set the over/under for total opinions in Claiborne and Rita at six (which was the total number of opinions in Booker). I am eager to hear readers make arguments for either the over or the under as we wait.

MySpace sentencing enhancement

It is a modern day cliche to warn persons to be careful about what they put online for the world to see. But this NPR story on "Day to Day" give this cliche a fascinating new sentencing twist. Here is the NPR teaser:

Darryl Perlin is the Senior District Attorney in Santa Barbara County, California who used a MySpace.com page in court to plead for a longer sentence for a defendant. Perlin talks to Alex Cohen.

The full audio story indicates that a defendant convicted of manslaughter as a result causing a death while drunk driving MySpaced her way to an additional two years in prison by posting pictures and comments suggesting she was not at all remorseful for her crime.